Flexibility in School Construction and Repair Contracts

Re: Advisory Opinion; Article II, Section 24(1)(j) of North Carolina Constitution; Sections 2-6, Chapter 207, 1999 Session Laws

Dear Representative Dedmon:

This letter responds to your recent request for an opinion regarding the constitutionality of certain statutory provisions which provide for flexibility in school construction and repair contracts for Charlotte/Mecklenburg schools. Sections 2 through 6, Chapter 207 of the 1999 Session Laws, modify and relax certain public building requirements and grant more authority to the Charlotte/Mecklenburg School Board ("Board") to prequalify a limited number of potential contractors for various school projects than allowed in general Statewide law. See N.C.G.S. 143

128. Since the sections of the Act in question pertain only to the Board, your question whether this local law violates Article II, Section 24(1)(j) which prohibits local or special acts regulating trade.

Section 1 of the Act allows the Board to prequalify a limited number of potential contractors for renovation, repair and rebuilding projects before soliciting sealed bids for the project. Section 2 authorizes the Board to contract with a construction manager (selected in the same manner as architects and engineers under Article 3D, Chapter 143 of the General Statutes) who will administer and be liable for the construction project. Section 4 authorizes the Board to utilize the design-build system of construction. Section 5 authorizes the Board to utilize any method of construction already authorized by law and Articles 3D. and 8 of Chapter 143 of the General Statutes. Section 7 gives the Board limited authority to "bundle" projects by awarding a single contract covering multiple facilities and sites. Section 7 provides that Sections 2 through 6 are applicable only to the Charlotte/Mecklenburg School Board.

Enactments of the General Assembly are presumed constitutional. Town of Spruce Pine Representative Andrew T. Dedmon October 18, 1999 page 2

v. Avery County, 346 N.C. 787, 792 (1997). An act is not invalid merely because it is local unless it violates some constitutional provision. State v. Smith, 265 N.C. 173 (1965). The cardinal rule of statutory construction is that a statute must be construed to effectuate the intent of the legislature. State v. Hart, 287 N.C. 76 (1975). Applying the principles to the statute in question, we conclude the statutes do not violate Article II, Section 24(1)(j), of the North Carolina Constitution.

Sections 2 through 6 of Chapter 207 are clearly "local" in nature because they pertain only to the Charlotte/Mecklenburg Board of Education. However, the clear intent of the General Assembly was to authorize the Board to utilize alternative contracting methods for certain school projects and not regulate trade.

The provisions in question merely waive or modify the State competitive bid requirements for certain construction projects by allowing the Board to utilize alternative contracting methods to those normally specified for local school boards. N.C.G.S. 143-128(d1). There have been numerous local modifications to the general competitive bidding requirements and procedures specified by Article 8, Chapter 143 of the General Statutes. In addition, the State Building Commission has the power to authorize any local unit of government to utilize most of the alternative contracting methods set forth in Sections 2-6 of Chapter 207, 1999 Session Laws.

The mere fact that a local act may have some impact on "trade" does not constitute a "regulation" of trade. The clear intent of this legislation was to regulate the bid process not trade. The law operates uniformly on all potential contractors or bidders for the construction projects covered by the Act.

The law operates uniformly on all potential contractors or bidders for the construction projects covered by the Act. The clear intent of the General Assembly was to regulate the local contracting process not the contracting industry. The mere fact that a local act may have some limited impact on "trade" does not necessarily mean it "regulates" trade. ? v. Town of Chapel Hill, 320 N.C. 549 (1987).

Very truly yours,

Roy A. Giles, Jr.
Special Deputy Attorney General

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